National Clothesline

The Occupational Safety and Health Act will be 40 years old next year.

The Department of Labor intends to “celebrate” by increasing inspections, increasing fines, and taking a harder line during settlement discussions over OSHA citations.

Congress will probably celebrate by increasing the availability of criminal penalties against corporate officers for willful violations of safety standards, even where there has been no fatality.

Not long ago, I shared the stage with a former official of OSHA, and I asked him whether OSHA was more concerned with employee safety or compliance with its regulations.

He candidly admitted that compliance was the major focus of OSHA personnel, without regard to whether a practice was safe or not. Instead of working with employers to make workplaces safer, OSHA works to punish employers who have not complied with its regulations.

Given that, you would think that OSHA regulations would be simple and easy to follow. Unfortunately, even seasoned compliance officers have to consult regulations (and their interpretations) to decide if a condition it found on a job site was in compliance with a particular regulation. It takes OSHA months to issue citations following an inspection, in large part because it has to analyze the regulations to make them fit into a particular set of facts.

Of course, an employer is expected to know in an eye blink whether a condition violates those regulations.

OSHA gets six months to decide whether to issue citations; employers must comply with regulations without the benefit of six months to analyze all the factors.

Employers should not need legal advice on safety matters; safety should be practiced based on operational expertise, not legal research.

I have practiced OSHA law for over 30 years, and I have never understood why Congress adopted the current scheme of fines.

When it is clear that OSHA is out to penalize employers, rather than advise them on safer ways to conduct business, employers will concentrate more on avoiding fines through compliance, and less on adopting novel, and more effective, safety practices. It’s only human nature (or in some cases, self preservation).

Over the years, I have encouraged employers to do everything in their power to provide a safe and healthy workplace, and at the same time, fight OSHA’s attempts to inspect them and assess fines for violations that amount to technical failure to have a red sign instead of a yellow sign, for example.

Once citations are issued, employers should think twice before accepting a “good deal” to reduce a fine. If there is a later citation, penalties will certainly be larger.

Moreover, a company that makes OSHA’s life easier will also be a target for future inspections.

If you are faced with an OSHA inspection, remember first that the inspector is just like a police officer looking to get evidence of a crime. If you do not want him to come into your plant, you can require him to obtain a warrant.

Contrary to the popular notion, inspectors do not "go easy" on employers who are cooperative and come down hard on those who don't. In fact, experience indicates that the opposite is true.

The more difficult an employer makes it, the quicker the inspector leaves and goes to the next, more cooperative employer. Besides, the law requires a compliance officer to cite any violation he sees, and it is technically against the law to give an employer "a break."

All personnel, especially supervisors, should be told that if any government official presents himself at the shop or plant, the company safety officer or upper management should be contacted.

Even more important, they should be told that no one — I repeat, no one — is permitted to come into the shop or inspect the plant unless the boss says so.

Most compliance officers will be willing to wait or come back later when the manager or safety person is available. If not, let them leave to obtain a warrant.

Virtually all compliance officers will accept this condition rather than run out for a warrant, which means more work.

Do not be intimidated by the inspector. Make him be patient. He is an intruder, and he should only be admitted on your terms. He is not your friend; even if he is, his job is to find safety and health violations, cost you money, and testify against you should you contest the citations.

Any conversations with the inspector should take place in private. Ask to see his credentials. If he does not have them, throw him out. If he does, write down his name, address, telephone number, supervisor's name, and supervisor's telephone number.

Then, find out why he is there. If he does not tell you specifically — in other words, does not say more than he is there to "inspect" — throw him out.

If the inspector says he is there based on a complaint, ask him for a copy. If he does not have it with him, tell him to call his office to get all the information on it. Find out who filed it, what the specifics of the complaint are, and what standard the complaint would violate, if valid.

If you cannot get straight answers, make the compliance officer get a warrant. At the risk of sounding like a salesman, if you are not getting straight answers, involve your attorney, preferably someone who knows a little about safety and health law.

If you do get straight answers, you should let the compliance officer inspect. But only let him inspect the area involved in the complaint. Do not let him inspect the entire plant; he would not be permitted to do so even with a warrant.

If you are concerned that you are not in compliance, make him get a warrant and give yourself time to correct the situation. You might avoid a citation.

Set boundaries

If the inspection actually does take place, the company safety officer should limit the inspection as much as possible. You select the routes; do not let him wander.

The company representative should carry a note pad and a camera, taking photographs when the compliance officer does, and writing down what the compliance officer says.

One warning, however. Do not write anything down that could be incriminating; OSHA may be entitled at a later date to see your notes.

If the inspector asks to talk to employees, insist on being present. If he wants private interviews, you can require a warrant. You do not, however, have to disrupt your work for these interviews.

It is also a good idea to let employees know ahead of time that they do not have to talk to OSHA.

During an inspection, it is important not to volunteer any information that could be used against the company. Never admit a violation; at most, say you will review it. Do not help OSHA prove its case against you.

In sum, you can control an OSHA inspection more than you realize. If you do not, you may very well find yourself defending your safety practices before an administrative law judge or hearing officer. Do not help OSHA celebrate its 40th anniversary with fines from your company.